No Place for Young Men: Why Snowden Can’t Get a Fair Trial in the USA

New OrleansIf you read the editorial pages of Rupert Murdoch’s Wall Street Journal, they pretty much want to hang Edward Snowden from the nearest tree for his tsunami level leak of documents about the National Security Agency’s spying work on just about everyone from standard issue citizens of the United States to heads of state around the world.Their vitriolic take on these matters made it all the more surprising, and, frankly, unsettling to read a devastating critique of what any of us might have thought was our system of justice in these matters by Jesselyn Radack, director of National Security & Human Rights at the whistle-blower protection nonprofit, the Government Accountability Project, entitled, “Why Edward Snowden Wouldn’t Get a Fair Trial.”

Here’s her argument in brief and it is mind blowing.

First, Snowden is charged under the 1917 Espionage Act, an almost 100-year old piece of law designed for pay-for-hire spies in the climate and hysteria of World War I.The Obama Administration “has charged more whistleblowers… under the…Act than all previous presidents combined.”

Secondly, Ms. Radack cites the fact that huge amounts of information is misclassified as secret, when officials from top to bottom in the government, have argued it shouldn’t be, which in essence makes a whole bunch of things illegal that should be common knowledge.

Thirdly, as anyone facing any kind of legal issue knows, defense even on the most level playing field is incredibly expensive, especially when you are facing the government in a high profile case, as Snowden would be doing.Radack estimates that it would cost between $1 and $3 million.

All of that is just preamble and general grist for the legal justice mill, but here’s where it gets truly bizarre to take the words right out of Radack’s mouth:

Next, before trial begins, a defendant must visit a Sensitive Compartmented Information Facility, or SCIF, to process information protected under the Classified Information Procedures Act. SCIFs are enclosed, government-controlled rooms for dealing with allegedly classified information allegedly leaked. This hermetically sealed, windowless room is the only place attorneys and their clients can discuss the evidence against the defendant.

The rules are airtight: Attorneys need security clearances to enter the SCIF. The response filings must be drafted in a government office, on a government computer, under the watch of a Justice Department security officer. Telephones, personal laptops and notepads are not allowed into the room. Attorneys cannot take notes. Additionally, the government files things in secret, under seal, to which a defendant has no access but must respond to. Unless the defendant’s team is clairvoyant and has eidetic memory, they are at a profound disadvantage.

Further disadvantages arise in the courtroom. The Classified Information Procedures Act is supposed to allow the government to create “substitutions” for classified information, such as summaries or redactions, as accommodations to be used in court. But the procedures can be manipulated in bizarre ways. In the Drake case, the government tried to invoke the “Silent Witness Rule,” wherein the judge, jury and lawyers must speak in code indecipherable to the public. If that were not Kafkaesque enough, the government even tried to make a “classified by inference” argument that, even though certain information was marked unclassified, Mr. Drake should have known that it should have been classified. Try to follow that logic.

But what comes next will dash any illusions from the “face the music” crowd that you can just “explain it all” to the jury. The Espionage Act has morphed into a strict liability law, which means the government does not have to show the defendant had a felonious intent. A defendant cannot argue that the information was improperly classified. First Amendment arguments have failed, largely because they would criminalize the journalism made possible by the “leaks.” The motive and intent of the whistleblower are irrelevant. And there is no whistleblower defense, meaning the public value of the material disclosed does not matter at all.

At the Manning court-martial, Judge Denise Lind would often read aloud her rulings, though the military only provided limited written transcripts of a fraction of the proceedings. Because I’m a lawyer, reporters and spectators often asked me to translate the legalese into English. More often than not, I was unable to do so. I had no idea what the judge was talking about because the underlying proceeding—pleadings and arguments—transpired in secret.

The Espionage Act is for spies like Aldrich Ames and Robert Hanssen, who sold secrets to enemies for profit. But thanks to vague and overbroad language, the law has criminalized a wide range of activities that are central to the news-reporting process and bear little or no resemblance to classic espionage. There are a dozen other criminal laws that could be applied to people accused of mishandling classified information. The government’s choice of the Espionage Act says more about its punitive powers than it does about the national-security interests the law was created to protect.

If even the Wall Street Journal makes space for this stunning argument, then we all need to think deeply about such an unjust system and the fact that so many of our elected leaders from the President on down are counting on our sense of basic fairness and our ignorance of the terrible truths that drive these tragic and farcical proceedings.